Hello all, Please see the revised notes for the CCWG Accountability WS2 Human Rights Subgroup Meeting #10 here; https://community.icann.org/x/5xC4Aw The revised notes are also listed below. Thank you! Brenda Notes Human Rights Meeting #10 (18 October @ 19:00 UTC) Notes (including relevant parts of chat): 21 participants at beginning of call. 1. Administrivia - Roll call, absentees, SoIs, etc Niels ten Oever: Nothing to report from attendees. No changes to the agenda. I have produced a draft update report for the CCWG and have distributed to this group for comments. David McAuley: Ruggie 13A we are not of one mind of what “address” means. Niels ten Oever: was not trying to present it as such. If you have edits please propose them. Also anyone if welcome to propose edits. Kavous Arasteh: Would kindly ask English speakers to speak slowly so non-English speakers can properly understand those comments. Jorge Cancio (GAC Switzerland): good point from Kavouss - especially late at night it is sometimes difficult to follow native speakers :-) 2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI a. within the scope of its Mission Greg Shatan: We have simply imported the relevant parts of the mission as we did not believe there was a need for additional interpretation as this is essentially self-explanatory. Tatiana Tropina: Support GS. Jorge Cancio: Support and remind all it is critical that we are bound by the mission. Kavous Arasteh: While nothing wrong with that quotation, I wonder whether we need that as it is not any interpretation? Brett Schaefer: After reading through the document, I think it would be extremely helpful if we could delete parts of the text that everyone has moved on from and provide a summary of comments/arguments with attribution. The current document has too much comment repletion and edited text to be readily accessible. Tatiana Tropina: Brett, I agree. Four columns and old text is really confusing. We can create a cleaner clone and save this one for the record. John Laprise: +1 Jorge Cancio (GAC Switzerland): Agree with Brett that the text is still difficult. Rapporteur and/or staff could do a bit more of cleaning. Tatiana Tropina: We may not need to have the Bylaws text in the document (– we could consider simply inserting text that states that every case wrt Human Rights consideration vs ICANN activities and policy making has to be checked or tested for mission limitations. Cheryl Langdon-Orr (CLO): cleaner version would be appreciated yes please links to the bylaw secions makes sense, but this doc is early version so I thank you all for this Tatiana Tropina: agree. Kavouss Arasteh: (poor audio) whenever we quote bylaws, mission etc. in left hand column – on the right hand side if there is no interpretation is required we simply insert this “no interpretation required”. Tatiana Tropina: We will certainly look at that. Thanks Kavouss. b. within the scope of other Core Values Greg Shatan: In contrast to the mission limitation it was felt that the Core Values statement did require interpretation. There is text about how to use the balancing test/guide. This was not agreed by all in the drafting team. Core values are more complex than the mission. We then quote the remaining Core Values. So this is a framework of interpretation. We can look at not quoting these once we complete the document given that at that point links may be sufficient. Tatiana Tropina: I strongly support Greg's position. The core values are defined in the bylaws and it's hard to say that they are not what they are. Nigel Roberts: Have a successful meeting. I have to leave now. Jorge Cancio: There is common ground with GS here. I have been asking this group to request from ICANN legal how they intend to manage the balancing test for this Core Value. It would be important to have that response for several reasons – mainly that the framework of interpretation must consider all the Core Values as well as the Mission. As such before making any interpretation of the HR Core Value we need to have the opinion from ICANN Legal and how they propose to help the Board apply this. This being said there were some points I could not agree with GS given the text seemed to diminish the HR Core Value. Another point at issue – there is no hierarchy of Core Values and saying they are all equal may be premature. However, agree that a Core Value is different than a commitment and needs a balancing test. Anne Aikman-Scalese (IPC): There was a response from ICANN legal. It arrived just prior to one of our calls There was specific language from ICANN Legal as to this ByLaw. Karen Mulberry: This was sent by ICANN Legal on 20 Sept in response to a HR request. Dear HR-Subgroup members,I understand that the question posed was "'What is the rationale for the addition of 'core values' to the ICANN bylaws, and what are its legal and non-legal implications in your opinion, especially for the human rights bylaw?”The Core Values have historically been part of the ICANN Bylaws, introduced after the ICANN evolution and reform effort in 2002,https://www.icann.org/en/about/governance/bylaws/bylaws-15dec02-en.htm. From 2002 through the Bylaws as they exist today, the Core Values remained unchanged, with the following as guidance for the application of Core Values: "These core values are deliberately expressed in very general terms, so that they may provide useful and relevant guidance in the broadest possible range of circumstances. Because they are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors. the statement - With the Bylaws drafted to implement WS1, the CCWG recommended the development of both Commitments as well as Core Values, for which the balancing test has changed. Some of the items that were previously Core Values are now expressed as commitments. The balancing test now requires that all of the commitments be met, while Core Values still are dependent upon situations and can be balanced amongst each other.The inclusion of the Human Rights commitment as a Core Value, which was expressly required in Annex 6 of the WS1 report, assures that it is an item that is considered while ICANN is performing its Mission. The implication of this is strong, particularly where the FOI considers how to guide the interpretation of this obligation. Of course, there are already legal obligations that are tethered to human rights obligations (for example, observing laws against human trafficking) that ICANN is already following. Given the long-standing nature of the Core Values section of the ICANN Bylaw Anne Aikman-Scalese (IPC): Agree with balancing test. The balancing also needs to be consistent with ICANN existing processes. So, for example, there is a balancing that goes on with respect to PDP work. Tatiana Tropina: I support GS position. When I look at the ICANN Legal reply – I strongly disagree that some Core Values are more important than others. I have no issue with asking ICANN Legal for more information but it should not be the same question. We should be seeking guidance on the application of these Core Values. Core Values are not the same as Commitments and the interpretation of Core Values will require some flexibility which will depend on many factors which may be active at the time there is a requirement to interpret. To me Core Values look to be rather self-explanatory the only thing that is needed is some guidance wrt their application. Jorge Cancio (GAC Switzerland): To sum up - I feel we have common ground on what it means that the Human Rights is a core value here - but the devil is in the details and some rather absolute characterizations of the HR Core Value. Kavous Arasteh: Do agree there is a difference between Core Values. Do not agree we should seek views of legal but we should not seek advice, views yes, but not advice. Should not state that the Core Values cannot be applied consistently. Jorge Cancio (GAC Switzerland): and we need to have clarity on the general relationship between commitments and core values, a question that goes beyond the Human Rights Core Value - and a consistent approach would surely be needed for all core values and commitments, not just the Human Rights one Greg Shatan: I agree in part with KA, There is no hierarchy in the Core Values and they have to be interpreted on a case by case basis. Kavous Arasteh: (audio issues). Just take out the square brackets. Tijani Ben Jemaa: glad we are progressing well. I completely agree with the Mission and Core Values text and support what GS has said. Greg Shatan: I think it's important to see the Core Values in the larger context, especially since Commitments and Core Values are subparts of the same section. Jorge Cancio (GAC Switzerland): agree, Greg. But this is not specific to the HR FoI... but a general question about core values and commitments. Brett Schaefer: Just to clarify, the balancing is between the different Core Values only? It is clear and agreed that the Core Values are secondary to Commitments and can under no circumstances violate the Mission? I ask because it is not clear that that is the case based on the reading and discussion Jorge Cancio (GAC Switzerland): I think that is the case, Brett Brett Schaefer: I am not sure how helpful the ICANN legal contribution (higher in the chat) is considering this statement: "Because they [core values] are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors" Avri Doria: I have trouble understanding how any core principle can trump human rights. but maybe in time i can understand something like that. stranger things have happened. Brett Schaefer: Seems like we are trying to define something ICANN sees as very malleable. c. Respecting Tatiana Tropina: This is one of the more controversial issues for the drafting group. We believe the Bylaws use the term Respect to be in contrast to the Enforcement of Human Rights. It remains unclear if the Ruggie Principles can be the only reference. Jorge Cancio: There is a lot of common ground and we are not so far apart. We are in agreement on the parameters of the Bylaws text to guide Respect. We also agree that ICANN will not enforce Human Rights. We also agree that the Ruggie Principles are an important source. The main area of contention is that I do not believe that Respect can only mean not violating – that would be an overly restrictive interpretation – It would be like saying we abstain from violating Human Rights. It is important to note that the Ruggie Principles do not have enforcement requirements for business partners – only moral obligations. For me respect has both a negative interpretation of not violating or infringing but also a positive interpretation of adjusting and promoting your activities in a way that is Human Rights conscious and our interpretation should cover both. Avri Doria: accepting UNGP as a source is quite a step forward. perhaps not enough, but something Tatiana Tropina: I suggested to convert "abstaining" into the positive interpretation "taking into consideration in the policy making etc." Niels ten Oever: Excellent Tatiana Tropina: but that shall be balanced with core values and with mission Tatiana Tropina: I can suggest the text for the next meeting Lee Hibbard: the point is that the UNGPs sets out the standard of expectations with regard to human rights. This expectation extends to ICANN to the extent that it can be considered as an economic actor, just like it extends to an organization like FIFA, it is reasonable to expect that ICANN is a major economic actor and that it seeks to avoid doing harm to human rights in its activities and through its business relationships Tatiana Tropina: something like Tatiana Tropina: “taking into account the necessity to balance the Human Rights core value with other core values, ICANN should take into account human rights in developing its policies and in decision-making processes”. Very rough thought. Kavous Arasteh: Ruggie Principles – We should say that we have considered various sources including the Ruggie Principles but these are not applicable wholesale to ICANN. But we could say that these are applicable under specified conditions. David McAuley: I am concerned about comments regarding mitigating Human Rights issues. Bastiaan Goslings: It’s an interesting almost philosophical discussion about ‘respecting’ in the google-doc, and I do not want to be a party pooper Anne Aikman-Scalese (IPC): I think respecting means we will in fact perform the balancing act we have all been discussing. Brett Schaefer: +1 David, mitigating or addressing implies ICANN would action. This goes against the text of the draft bylaw. Bastiaan Goslings: But I wonder, when looking at the Human Rights core value, whether the ‘respecting’ can be separated from the ‘as required by’ as currently is done in the google doc… KAVOUSS ARASTEH: Niels, What I said was, first of all we need an opening part to the use or otherwise of Ruggie Principle saying that the group has examined various sopurtce, among which was Ruggie Principle and concluded that not all those principles totally apply Greg Shatan: We have been clear that we should not try to implement all the Ruggie principles as is. Niels ten Oever: Making great progress. Awaiting response from ICANN legal re Applicable Law. Would encourage everyone who has concrete comments please email these to the list or include these directly in the Google doc. Adjourned. From: <accountability-cross-community-bounces@icann.org> on behalf of MSSI Secretariat <mssi-secretariat@icann.org> Date: Tuesday, October 18, 2016 at 4:47 PM To: CCWG Accountability <accountability-cross-community@icann.org> Cc: "ws2-hr@icann.org" <ws2-hr@icann.org> Subject: [CCWG-ACCT] Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 10 | 18 October Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Human Rights Subgroup Meeting #10 – 18 October 2016 will be available here: https://community.icann.org/x/5xC4Aw[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_5xC4Aw&d=DQMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=kbiQDH54980u4nTPfwdloDLY6-6F24x0ArAvhdeDvvc&m=3atvYplaM1i6gKsUGhl77j2J20hizb82JSuuE2e-kmw&s=xHITxkFPwEtiuIT34U7GrnAtrTWxlH5XVvlyNJEvqjw&e=> A copy of the action items and notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Notes 1. Administrivia Roll call, absentees, SoIs, etc No updates for SOI, draft agenda adopted Niels - Short report sent to the list to meet the 21 Oct date for the Co-Chairs 1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion. 2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones. 2.2 Supplemental Report See [0] 3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet. 3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet. [0] https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_documen... Comments on draft text should be submitted to the list 2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI a. within the scope of its Mission b. within the scope of other Core Values c. respecting d. internationally recognized human rights e. as required by applicable law Presentation and discussion of the work of the drafting team by team members. Greg Shatan walked the group through the document starting with the Mission, seems that the Mission section may not need any further interpretation at this time. Agree that Mission covers core values. It was noted that it may not be necessary to quote the bylaw. Discussing the general framework of the core values and how they work within the bylaws, in particular for human rights aspect. Requesting ICANN Legal opinion on relationship between core values. Noted the response from ICANN Legal on 20 Sept. on core values. With the Bylaws drafted to implement WS1, the CCWG recommended the development of both Commitments as well as Core Values, for which the balancing test has changed. Some of the items that were previously Core Values are now expressed as commitments. The balancing test now requires that all of the commitments be met, while Core Values still are dependent upon situations and can be balanced amongst each other. Suggestion to remove the square brackets in the text as they are not needed. Discussion of how to move forward based on the discussion of the draft from the drafting team. Do have some parameters that the group is in agreement. Agree that the Ruggie Principals are a source to be used. In particular the notion of respectfulness Suggestion that the group add some background to the text to explain. No intention to create and automatic application of the Ruggie Principals, in particular application as to respect. 3. AOB Documents Presented · Presentation Meeting 9.pdf[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_dow...> · NewdocumentFoIWG.pdf[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_dow...>